On the Right to Resist
by Giorgio Agamben, published originally on June 02, 2022 [an unofficial translation from the Italian language]
I will try to share with you some thoughts on resistance and civil war. I am not going to remind you that a right of resistance already exists in the ancient world, which knows a tradition of praising tyrannicide, and in the Middle Ages. Thomas summarized the position of scholastic theology in the principle that tyrannical rule, insofar as it substitutes for the common good a partisan interest, cannot be iustum [justified, justifiable]. Resistance—Thomas says perturbatio [perturbation, upheaval]—against this regime is therefore not seditio [sedition].
It goes without saying that the subject necessarily involves a rate of ambiguity as to the definition of the tyrannical character of a given regime, to which witness the cautions of Bartolus, who in his Treatise on Guelphs and Ghibellines, distinguishes a tyrant an ex defectu tituli from a tyrant ex parte exercitii, but then has difficulty in identifying a iusta causa resistendi [a just cause for resistance].
This ambiguity reappears in the 1947 discussions about inscribing a right of resistance in the Italian constitution. Dossetti had proposed, as you know, that the text include an article that read, “Individual and collective resistance to acts of public power that violate the fundamental freedoms and rights guaranteed by this constitution is a right and a duty of citizens.”
The text, which had also been supported by Aldo Moro, was not included, and Meuccio Ruini, who chaired the so-called Commission of 75 that was to prepare the text of the constitution and who, a few years later, as president of the Senate, was to distinguish himself for the way he tried to prevent parliamentary discussion of the so-called fraud-law, preferred to postpone the decision to the assembly’s vote, which he knew would be negative.
It cannot be denied, however, that the hesitations and objections of jurists—including Costantino Mortati—were not without arguments when they pointed out that the relationship between positive law and revolution cannot be legally regulated. This is the problem that, regarding the figure of the partisan, so important in modernity, Schmitt defined as the problem of “regulating the irregular”. It is curious that the jurists spoke of the relationship between positive law and “revolution”: it would have seemed to me more proper to speak of “civil war”. How, indeed, to draw a line between right of resistance and civil war? Is not civil war the inevitable outcome of a seriously understood right of resistance?
The hypothesis I intend to propose to you today is that this way of approaching the problem of resistance misses the essential, and, that is, a radical change that concerns the very nature of the modern state—that is, to put it bluntly, the post-Napoleonic state. One cannot speak of resistance unless one first reflects on this transformation.
European public law is essentially a law of war. The modern state is defined not only, in general, through its monopoly of violence, but, more concretely, through its monopoly of jus belli [the right to wage war]. The state cannot renounce this right, even at the cost, as we see today, of inventing new forms of war.
The jus belli is not only the right to make and conduct wars, but also the right to legally regulate the conduct of war. It thus distinguished between the state of war and the state of peace, between the public enemy and the delinquent, between the civilian population and the fighting army, between the soldier and the partisan.
Now we know that precisely these essential features of the jus belli have long since disappeared, and my hypothesis is precisely that this implies an equally essential change in the nature of the state.
Already during World War II the distinction between civilian population and combatant army had been gradually obliterating.
One tell-tale is that the Geneva Conventions of 1949 recognized a legal status for the population participating in the war without belonging to the regular army, provided, however, that commanders could be identified, arms were displayed and there was some visible marking.
Once again, these provisions are of interest to me not because they lead to a recognition of the right to resist—for that matter, as you have seen, well-limited: a partisan who displays arms is not a partisan, he is an unconscious partisan—but because they imply a transformation of the state itself, as the holder of the jus belli.
As we have seen and continue to see, the state, which from a strictly legal point of view, has now firmly entered the state of exception, does not abolish the jus belli, but by that very fact loses the possibility of distinguishing between regular war and civil war. We are now faced with the State state conducting a kind of global civil war [originally in Italian: di guerra civile planetaria], which it cannot in any way recognize as such.
Resistance and civil war are therefore rubricated as acts of terrorism, and it will not be inappropriate here to recall that the first appearance of terrorism in the postwar period was the work of a French army general, Raoul Salan, supreme commander of the French armed forces in Algeria, who had created in 1961 the OAS, which means: Organisation armée secrète [Secret Armed Organisation]. Reflect on the formula “secret army”: the regular army becomes irregular, the soldier becomes confused with the terrorist.
It seems clear to me that in the face of this state one cannot speak of a “right to resist”, possibly codifiable in the constitution or derivable from it. At least for two reasons: the first is that civil war cannot be normalized, as the state for its part is instead trying to do through an indefinite series of decrees, which have altered from top to bottom the principle of stability of law. We have of source a state that conducts and seeks to codify a larval form of civil war.
The second, which constitutes for me an indispensable thesis, is that under the present conditions resistance cannot be a separate activity: it can only become a form of life.
There will truly be resistance, only if and when each person is able to draw from this thesis the consequences that affect him or her.1
June 2, 2022
Giorgio Agamben
The added explanatory text [in square brackets] is my own.
Would anyone be able, please, to explain the difference between a tyrant “ex defectu tituli” and a tyrant “ex parte exercitii”? If yes, could you please write as a comment below or send me an email.
Source text: quodlibet.it/giorgio-agamben-sul-diritto-di-resistenza
NB, the Reader may be interested in reading three related, recent texts by the Maestro, here:
quodlibet.it/giorgio-agamben-stato-di-eccezione-e-guerra-civile [State of Exception and Civil War]
quodlibet.it/giorgio-agamben-lascia-pur-grattar-dov-u2019-a-rogna [Let It Scratch Where the Mange Is]
quodlibet.it/giorgio-agamben-una-comunit-14-ella-societa [A Community Within Society]
Thanks for having put your eyes on “The Flying Fish”. I kiss you on the mouth.
Tomasz Goetel
Ibiza, Spain
June 9 AD 2022